At the end of May, when I was out walking my dog one day, I saw a contractor who was working for the Parish Council, drive off the recreation field having just finished cutting the hedges around the field. I was alarmed because I've seen a lot of bird activity in the hedges and guessed that there could be nests in the hedges so I walked over and looked at one and immediately found, in the very first place I looked, a damaged birds nest. The ingredients of the nest were new and the moss the bird had used was still fresh and green.
I took photos of the nest with my mobile phone and then contacted the Parish Council and asked them nicely if they knew why the hedges were being cut in bird nesting season and politely alerted them to the fact that a nest had been damaged. I rather naively expected the PC to respond along the lines of thanks for letting them know, they'll check, and take steps to help ensure that birds nests aren't damaged next year. What I actually got was a lot of unpleasant prevarication and procrastination and a lengthy exchange of emails. I sought the advice of the RSPB and the biodiversity division of our local authority both of whom were very helpful. During the course of all of this, I also found out from my own research that the local authority had previously sent our parish council a pamphlet which explained the law in relation to birds nests and which also contained guidelines for hedge management, and that as a result of this the parish council had in the next PC meeting minutes acknowledged the importance of not cutting hedges during bird nesting season as a way to mitigate the risk of damaging birds nests.
But in the minutes of a later parish council meeting, I also found that the parish council decided to cut hedges during bird nesting season because the contractor had told them that if he cut the hedges in January or February, he would have to cut the hedges again in the summer and again in the autumn and that he would have to charge them extra because his contract did not cover 3 cuts. The parish council, therefore, decided that cutting the hedges during bird nesting season was the most cost effective solution, despite the fact that the biodiversity division had already explained in their pamphlet that the expected amount of growth should be taken into account when cutting hedges in the Dec/Jan/Feb period thus making it unnecesary to cut them more than once.
By this time, the whole situation was getting out of hand and becoming quite stressful so I gave up looking for an amicable solution and reported the parish council to the police. I described everything that had happened since I first saw the damaged birds nest, including the rather unpleasant correspondence with the parish council. As a result of this, the police did include a brief mention of the law and birds nests in their monthly report to the parish council meeting. So I was hopeful that this would be a sufficient incentive for the parish council to do the right thing next year since they've now been alerted to the likelihood of birds choosing that hedge to nest, and they've been given all the information they need to help them make good decisions. I also thought that all of this might increase the risk of prosecution next year if they again cut that hedge during bird nesting season and again damaged a nest and that the increased risk of prosecution would be an additional incentive for them to do the right thing next year. I thought that deterrence was the best option for all because after all, I have to live here side by side with the councillors, and I would be hated forever if I was responsible for the parish council being prosecuted.
But it seems that I'm mistaken in believing in the effectiveness of deterrence because the police are telling me that in reality they have been unable to successfully bring a prosecution for this type of offence since defence solicitors ask questions about the witnesses level of expertise, the species of bird that made the nest, about observations made of the hedge by witnesses before the hedge was cut, whether or not there is proof that the contractor did not check the hedge for nests before cutting, etc. The police also said that photographs of the nest after the damage is done is not sufficient evidence. I feel, rightly or wrongly, that I'm being put off from reporting anything like this again.
Anyway, I apologise for the length of this post but I wanted to tell the whole story so that the context of my following question would be clearer. And finally here's my question: theoretically birds nests are protected under the Wildlife and Countryside Act 1981 (as amended) but are they protected in practice? i.e. what on earth can we, as members of the public do, if local councils are not afraid of the consequences of breaking the law?
I am afraid that you have highlighted the truth! Short of sitting in the hedge yourself for three to four months you will find you can do nothing - the law has no teeth! You would weep at the number of times this sort of thing happens and there is always an excuse! Sorry for you - and me but we need much greater numbers of protesters before we can make waves!
Jenni
God gave us two ears and one mouth for a very good reason!
I might have known it.
JD
Seriously thinking about trying harder!
But is it really true that the law has no teeth?
And should the police really be trying to deter me from reporting damage done to birds nests, especially if the council cuts the same hedge next year during bird nesting season and damages yet another birds nest?
With all the evidence I've saved from this year's incident, why would that not be enough evidence if the same thing occurs next year in the same hedge?
And isn't it up to the CPS to decide whether or not to prosecute?
I looked at the legal guidance on the Crown Prosecution Service website, but unfortunately in the section for wildlife offences, it only says "Chapter currently being updated" and it does not say when the update began or when it will be ended.
If it's true that the law has no teeth, I'd be interested in knowing if the RSPB is doing anything to improve the situation.
Criminal law aside, the PC has possibly failed to have regard to the purpose of conserving biodiversity, an obligation placed upon all public bodies by Section 40(1) of the Natural Environment and Rural Communities Act 2006. This makes them vulnerable to judicial review. It may be worth lodging a complaint with the Local Authority Ombudsman (see http://www.lgo.org.uk/) and seeing what happens.
JBNTS
Every day a little more irate about bird of prey persecution, and I have a cat - Got a problem with that?
Thanks JBNTS but unfortuantely this was done by a parish council, and the Local Authority Ombudsman said that while they can deal with complaints about district, borough, city or county councils, they cannot handle complaints about town or parish councils.
In fact, I don't know who does deal with complaints about town or parish councils (other than the Standards Board dealing with matters of personal or prejudicial interests).
Our local county council also said that the parish council could be putting themselves in breach of section 40 of NERC 2006 . . . . but what happens if the parish council is in breach of the act, and who investigates to see if they are in breach?
Does the RSPB reply to posts? I would definitely be interested in hearing their take on this matter. Specifically I would like to know if and how recalcitrant parish councils can be incentivised to follow good practice guidelines and cut hedges in the winter rather than in bird nesting season?
Actually I've got another question. The contractor appears to have told the parish council that he checked for nests before cutting the hedge and didn't find any. Well since he clearly missed a new nest, I'm wondering if there are published guidelines about how to safely (without disturbing nesting birds) check hedges for active birds nests?
I've looked for guidelines on the net but could only find general advice about checking for the existence of birds nests, but found nothing about how a contractor who may not be familiar with the local area can tell if birds are nesting in the hedge.
Tomison said: Thanks JBNTS but unfortuantely this was done by a parish council, and the Local Authority Ombudsman said that while they can deal with complaints about district, borough, city or county councils, they cannot handle complaints about town or parish councils. In fact, I don't know who does deal with complaints about town or parish councils (other than the Standards Board dealing with matters of personal or prejudicial interests). Our local county council also said that the parish council could be putting themselves in breach of section 40 of NERC 2006 . . . . but what happens if the parish council is in breach of the act, and who investigates to see if they are in breach? Does the RSPB reply to posts? I would definitely be interested in hearing their take on this matter. Specifically I would like to know if and how recalcitrant parish councils can be incentivised to follow good practice guidelines and cut hedges in the winter rather than in bird nesting season?
In dealing with an errant PC the advice seems to be to complain to the relevant primary Local Authority (the one collecting your Council Tax) which should have appropriate mechanisms for handling your complaint.
Tomison, This is my old area of expertise but am a bit lost how to reply. You have said in the post that the RSPB and local authority were very helpful over this incident.
Unfortunately no one can really give any advice about something that hasn't yet happened. The police have been unable to pursue this year's incident for whatever reason. You can't really use evidence of an incident this year to prove a possible incident next year, especially if the police decided they couldn't prove it this year. But you can use the degree of knowledge that has now been imparted to the Council to disprove a claim of future lack of awareness.
My advice is to ask another question at the Parish Council meeting and get them to pass something that acknowledges that hedges should only be cut outside the breeding season. There is nothing at all to stop you reporting this next year, if it happens, and if the council have acknowledged this fact then you will be on firmer ground.
There is a defence under the legislation that protects you if you do something as an incidental part of a 'lawful action'. The Council would have show they couldn't cut hedges at any other time but if they had already addressed this it would counteract this. Councils and others have been prosecuted before for nest destruction when cutting hedges and it might be worthwhile bringing this to their attention.
I think the only way is to accept that right or wrong the council have not been proved to do something wrong this time but that there is plenty of time to stop this happening next year.
Edit: It may also be useful to point out to the Council that even experienced nest finders will not find all nests as they are built in hedges, on the ground, in holes and not just in places visble to the passer by.
The Cotswold Water park sightings website
My Flicker page
Tomison, I am outraged by this thread and have only just spotted it. I find it difficult enough when my neighbours go out in June and start clipping away at their hedges (I have a quiet word with them), but to think that councils do this when they are perfectly aware of the situation, is unforgivable. In the last house I lived in, we owned a piece of farming land about 15 acres and one boundary met the road where there was a very long mixed leaf hedge. Both we (and the tenant farmer) were made perfectly aware by the council that none of the hedges, nor any fallow land should be cut before the end of June and preferably not until the end of July. In fact, when we tried to cut back some very tall grass in a part of the field in late June, we were reported by the Parish Council for so doing and an inspector was sent out from the council!!!
I don't really understand how all the authorities work together on this, nor how you can prevent this happening again, but there is a code of conduct at the very least in place. Do you know who owns the land? Would that not be good place to start. If the council own the land, they will be perfectly aware of the countryside code against cutting hedges at nesting time, and the laws about damaging bird nests.
Sorry, I am not adding anything useful to this thread. I am just very angry! My hedge (and all the hedges owned by the farmers near me) have still to be cut. We wait till late July/early August just in case. It causes chaos because the lanes are so narrow and get even narrower at this time of year, but a small price to pay. And there is no way anyone can be sure there are no nests in a hedge. Absolutely impossible! The adult birds making the nests keep away while the damage is being done, they don't put up a sign saying 'occupied' or 'house under construction' or 'baby on board'.
The RSPB should be all over this. Where has the word 'protection' got to in the RSProtectionB, if we can't even stop people cutting hedges at the wrong time of year?
I must watch my blood pressure!
bye for now
Tomison, Your answer is clearly set out in the RSPB guidelines at
www.rspb.org.uk/.../trimming.aspx
No cutting of hedges until 31st July or else the farmer could lose his agro enviromnment grant. If it is a parish council then tell them that if their parisioners have to abide by this then so should they. It may be worth checking on the councilor's background, there is bound to be a farmer amongst them.